State v. Moreland

• Decision Date: 13 November 1961
• Docket Number: No. 2,No. 48903,48903,2
• Citation: 351 S.W.2d 33
• Parties: STATE of Missourl, Respondent, v. Wesley MORELAND, Appellant
• Court: Missouri Supreme Court

Page 33

351 S.W.2d 33

STATE of Missourl, Respondent, v. Wesley MORELAND, Appellant.

No. 48903.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Wesley Moreland, pro se.

Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

On January 28, 1929, appellant pleaded guilty to the crime of rape and he was sentenced by the Circuit Court of Maries County to life imprisonment. On December 8, 1960, he filed a motion pursuant to Supreme Court Rule 27.26, V.A.M.R., to vacate the sentence and judgment, and he has now appealed from the judgment of that court overruling his motion.

Apparently the proceedings at the time of the arraignment, plea and sentence were not transcribed and made a part of the files and records of the case. In any event they are not a part of the transcript before this court. In the transcript there appears a certified copy of page 18 of the 'Minute Book' of the Circuit Court of Maries County for January 28, 1929, wherein there is set out two minute entries as follows: 'Information filed Plea of Guilty entered, Sentenced to Penitentiary for life,' and 'Plea of Guilty entered, sentenced to life imprisonment, sentence passed suit withdrawn.' The significance of the last entry is not apparent. There is also in the transcript a certified copy, the certificate being dated January 28, 1929, of the sentence and judgment which in its material parts is as follows: 'Now, at this day comes the Prosecuting Attorney for the State, and also comes the Defendant herein, in person, in the custody of the Sheriff of this County, (sic) in open Court, whereupon the said Defendant is informed by the Court that he stands charged with the offense of Rape whereupon the Defendant, Wesley Moreland enters a plea of guilty as charged in the Information, whereupon the Court fixes his punishment at life in the Penitentiary * * *.' A second certified copy of the sentence and judgment appears in the transcript, the certificate being dated March 7, 1946, but in this copy the words, 'and in the presence of his Attorney and Counsel,' do not appear either as a part of the judgment or as originally being there and subsequently marked out.

The circuit court overruled appellant's motion without a hearing, and gave as its reasons that appellant 'heretofore presented to the Circuit Court of Cole County, Missouri, his petition for habeas corpus on the grounds now presented in his instant petition, and further defendant heretofore presented his motion based upon the same grounds and praying for the same order to this court, and in both of said proceedings defendant's petitions wer denied,' and also because the present motion 'is without merit.' The transcript contains a copy of a habeas corpus petition, return and judgment of the Circuit Court of Cole County, and a copy of a motion previously filed by appellant in the Circuit Court of Maries County which was overruled without a hearing and from which ruling no appeal was taken. These matters will be considered subsequently.

The pending motion was prepared pro se. It is lengthy and rambling, it contains numerous unsupported conclusions, and it is liberally sprinkled with pretentious legalisms and quotations from reported cases. For the purposes of this appeal we need consider only those allegations pertaining to the lack of and waiver of counsel at the time appellant entered his plea of guilty and was sentenced. The substance of those allegations is that (1) appellant had no counsel when he pleaded guilty, (2) the circuit court made no inquiry as to whether he had counsel or could obtain counsel to advise and assist him or whether he was 'intelligently able to knowingly waive such right,' and (3) the prosecuting attorney and the circuit court knew that he 'was an uneducated person having no experience with or knowledge of the law and having only the equivalent of a second grade elementary education.' By giving a liberal interpretation to the allegations in the motion, it may be said that appellant at least attempted to allege that when he pleaded guilty to a capital offense he was not represented by employed or appointed counsel, that because he had only the equivalent of a second grade education and no experience with or knowledge of law he did not and could not intelligently waive his constitutional right to counsel, and that the circuit court knew of these circumstances. We shall so treat the allegations of the motion.

Motions filed pursuant to Supreme Court Rule 27.26 may be summarily disposed of by the circuit court when 'the motion and the files and records of the case' show that the petitioner is entitled to no relief, or when the only issue presented is one of law. State v. Jarrett, Mo.Sup., Sup., 317 S.W.2d 368; State v. Kitchin, Mo.Sup., 300 S.W.2d 420. However, the converse is also true, and when the files and records of the case do not conclusively refute the grounds for relief set forth in the motion, and the allegations of fact in the motion, if true, would authorize some requested relief provided for by the Rule, 'the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' Supreme Court Rule 27.26.

Appellant attempts to establish a denial of due process of law under the Fourteenth Amendment to the Constitution of the United States (whether or not the court was required to appoint counsel pursuant to what is now designated as Section 545.820 RSMo 1959, V.A.M.S., see Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398), and we are bound by the decisions of the United States Supreme Court as to what does and does not constitute a denial of due process of law guaranteed by the Fourteenth Amendment. The transcript contains only the motion filed by appellant (except certain other pleadings in other proceedings not now material) and the factual allegations therein, as we have determined them to be by a liberal interpretation, must for purposes of this appeal be accepted as true. Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557.

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 65, 77 L.Ed. 158, it was held that 'In a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; * * *.' Appellant was charged with and pleaded guilty to a capital offense, but he does not specifically allege that he was unable to employ counsel. However, if because of limited education and experience he was incompetent to waive counsel, as he alleges, he would have been incompetent to determine whether he should or should not employ counsel, if otherwise able to do so. Following the Powell case the United States Supreme Court has indicated by numerous decisions the factors which may render a state criminal proceeding held without counsel 'so apt to result in injustice as to violate the Fourteenth Amendment.' Cash v. Culver, supra [358 U.S. 633, 79 S.Ct. 435]. The result of these decisions, whether or not they involve a capital case, is summed up in Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118 76 S.Ct. 223, 224, 100 L.Ed. 126, in this language: '[W]here a person convicted in a state court has not intelligently and understandingly waived the benefit of counsel and where the circumstances show that his rights could not have been fairly protected without counsel, the Due Process Clause invalidates his conviction * * *.' See also Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686; Quicksall v. People of the State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135; De Meerleer v. People of State of Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. The files and records of the case as shown in the transcript before us indicate that without the presence of counsel appellant entered a plea of guilty to a capital offense on the day the information was filed, and that on the same day he was sentenced to life imprisonment. The effect of appellant's allegations in his motion is that he did not and could not understandingly waive counsel because of his lack of experience...